CAAFlog » Article 2(a)(10)

I’ve covered every opinion in CAAF’s 2011 term except one: United States v. Ali, 71 M.J. 256, No. 12-0008/AR (C.A.A.F. 2012) (CAAFlog case page) (link to slip op.). The case involved a dual Canadian/Iraqi citizen who was a civilian contractor working for U.S. forces as an interpreter in Iraq in 2008. In February of that year, he was involved in verbal and physical altercations with another linguist. He was subsequently placed into pretrial restriction, then pretrial confinement by U.S. Army authorities. He was charged with violations of the UCMJ, and was eventually convicted by a military judge sitting as a general court-martial, pursuant to his pleas in accordance with a pretrial agreement, of making a false official statement, wrongful appropriation, and wrongfully endeavoring to impede an investigation, in violation of Articles 107, 121, and 134. He was sentenced to confinement for five months, but pursuant to the pretrial agreement only a sentence of time served (115 days) was approved by the convening authority.

CAAF granted review to determine if jurisdiction existed under Article 2(a)(10) to try Ali by court-martial, and if so, then to decide the constitutionality of such an exercise of jurisdiction. Article 2(a)(10) (10 U.S.C. § 802(a)(10)) extends court-martial jurisdiction to: “In time of declared war or contingency operation, persons serving with or accompanying an armed force in the field.” In the penultimate opinion of the term, CAAF ruled unanimously that Ali was subject to a constitutional exercise of court-martial jurisdiction. Judge Erdmann wrote for the court, with Chief Judge Baker and Senior Judge Effron both writing separate concurring opinions.

The opinion was analyzed by MAJ Jeremy Steward on 31(b)log in early August. He observed that CAAF’s finding of a constitutional exercise of jurisdiction “may be quite narrow and limited to the facts of this particular case.” Additionally, Professor Steve Vladeck analyzed the opinion at Lawfare, beginning his analysis with this broadside:

The CAAF’s nominal unanimity as to the result belies the profound flaws with Judge Erdmann’s majority opinion–which, among other things, is yet another example of some court of appeals judges refusing to take the Supreme Court’s decision in Boumediene seriously, embracing instead extreme arguments that not even the Executive Branch has advanced. The far more analytically coherent and defensible justifications for the result can be found in the concurring opinions authored by Chief Judge Baker and Judge Effron—opinions that nevertheless raise some troubling questions of their own.

Professor Vladeck particularly attacks the majority for “unjustifiably discount[ing] Ali’s one very important voluntary connection to the United States–his employment by a U.S. contractor” in determining that Ali is not protected from trial by court-martial by the Fifth and Sixth Amendments. This attack is based on the fact that such employment has formed the basis for prosecution of a foreign national for an offense against another foreign national in U.S. Article III courts, under the Military Extraterritorial Jurisdiction Act (MEJA) (18 U.S.C. §§ 3261-3267). Since CAAF’s opinion in Ali (and Professor Vladeck’s analysis), the Fourth Circuit upheld the MEJA prosecution of a foreign national for an offense against another foreign national based on his status as a military contract employee. United States v. Brehm, __ F.3d __, No. 11-4755 (4th Cir. Aug. 10, 2012).

Using such a connection to affirm an Article III prosecution under MEJA and a court-martial prosecution under Article 2(a)(10) does appear facially inconsistent, but there’s an important distinction between Ali and Brehm that Professor Vladeck overlooks: the fact the MEJA doesn’t apply to citizens of of the host country; a fact key to Judge Erdmann’s opinion:

Leaving aside the fact that MEJA expressly provides for concurrent jurisdiction with courts-martial, the problem this argument presents is that no Article III alternative exists under the facts of this case. While MEJA extends to civilians “employed by or accompanying the Armed Forces,” 18 U.S.C. § 3261(a) (2006), which likely includes non-United States citizens, it does not extend to citizens of the host nation. See 18 U.S.C. § 3267(1)(C), (2)(C) (excepting all “national[s] of or [those] ordinarily resident in the host nation”). Thus, there is no available alternative forum here, and Congress used the “least possible power adequate” to try Ali in this case.”

Ali, slip op. at 34-35 (internal citation omitted) (emphasis added). Moreover, in a footnote to the above paragraph, Judge Erdmann wrote:

 In regard to the issue raised in Senior Judge Effron’s separate opinion, Ali, __ M.J. at __ (7) (Effron, S.J., concurring in part and in the result), our holding is limited to the narrow circumstances presented by this case, namely the exercise of court-martial jurisdiction over a dual citizen of the host country and a third country. We do not reach the question of the constitutionality of court-martial jurisdiction over a noncitizen who is not also a host-country national.

Ali, slip op. at 35-36, n. 28 (emphasis added). Ali therefore applies court-martial jurisdiction under Article 2(a)(10) to a non-U.S. citizen civilian only in circumstances where there is no Article III jurisdiction. The court’s opinion specifically disclaims circumstances implicating a jurisdiction-conferring statute (i.e., MEJA). But more importantly, it also disclaims all Supreme Court precedent involving application of court-martial jurisdiction to United States citizens:

Indeed, all of the cases relied upon by Ali for the constitutional limitations on congressional extension of military jurisdiction over civilians involved United States citizens tried by court-martial not in a time of war. None of these cases purported to address the issue before us, which is the constitutionality of military jurisdiction over a noncitizen tried outside of the United States during a contingency operation. Under the circumstances of this case, the concerns raised by the Supreme Court are not applicable.

Ali, slip op. at 24-25 (emphasis added). MAJ Steward’s words come to mind: “this result may be quite narrow and limited to the facts of this particular case.”

Read more »

Here is a link to Professor Steve Vladeck’s thoughts on the US v. Ali oral argument.  Here and here are our prior discussions of the argument, including our guest blogger, which Prof. Vladeck very nicely links to.  A snippet from his comments:

But the objection to military jurisdiction over civilians is not simply grounded in fairness concerns. Rather, as Justice Hugo Black put it in 1957, “[t]rial by jury in a court of law and in accordance with traditional modes of procedure after an indictment by grand jury has served and remains one of our most vital barriers to governmental arbitrariness.” If that barrier is only displaced for civilians who accompany our forces in the field during a declared war, that’s one thing; after all, Congress hasn’t declared war since 1942. But if it could be brushed aside any time a civilian in any way supports a “contingency operation,” then one hopes that the Court of Appeals for the Armed Forces will realize what the Supreme Court has long suggested—that, regardless of how uncontroversial it might seem to court-martial someone like Ali, the first step down this particular slippery slope may well be the last.

I must say that I found the prediction that the case is going to SCOTUS a bold prediction.  We await a decision.  Any predictions on when it comes out?

Here is a link to the hearing page for United States v. Ali, No. 12-0008/AR. The page only has the defense brief, here, but the government’s brief is due Feb. 5, 2012.

Full disclosure, I am an amici (or at least we’ve moved to be amici) in the case as part of the long-windedly titled, “Brief of Amici Curiae John F. O’Connor, Michael J. Navarre, Air Force Appellate Defense Division, and Navy-Marine Corps Appellate Defense Division.”  Our brief, which borrows from the lead amici’s law review article on the same topic, is available here.

Amici make among other arguments the intial argument that the exercise of court-martial jurisdiction over Mr. Ali is unconstitutional because court-martial jurisdiciton is not the least possible power needed to maintain good order and discipline among active duty troops.  And the amici brief offers CAAF an alternative to finding Art. 2(a)(10), UCMJ unconstitutional by finding that Mr. Ali was not serving “in the field” at the time of his court-martial, as required by  a narrow reading Article 2(a)(10) because the historical understanding of “in the field” is limited to circumstances where it is logistically impractical to turn a civilian over to civilian authorities.

For those in DC wanting to see the historic argument in United States v. Ali, challenging the constitutionality of civilian UCMJ jurisdiction, attending will be an expensive proposition as the argument will be held at the University of Washington School of Law, Seattle, Washington as part of the Court’s Project Outreach.  The argument is currently scheduled for April 5, 2012 at 3:30 p.m.  No word on whether amici are requesting or will be granted time for oral argument.

Here is the Daily Journal entry announcing grant of review in U.S. v. Alaa M. ALI,  No. 12-0008/AR.  As we’ve reported extensively, Ali came to the courts when the Army TJAG forwarded Mr. Ali’s  guilty plea at a general court-martial to ACCA pursuant to Article 69(d), UCMJ.  Mr. Ali is the first civilian prosecuted under the amended Art. 2(a)(10), UCMJ.  The amendment attempted to apply the UCMJ to contractors accompanying US armed forces in the field during “contingency operations” in addition to times of war.

Review is granted in the following issues:

I. WHETHER THE MILITARY JUDGE ERRED IN RULING THAT THE COURT HAD JURISDICTION TO TRY APPELLANT AND THEREBY VIOLATED THE DUE PROCESS CLAUSE OF THE FIFTH AND SIXTH AMENDMENTS BY REFUSING TO DISMISS THE CHARGES AND SPECIFICATIONS.

II. WHETHER THE COURT-MARTIAL HAD JURISDICTION OVER APPELLANT PURSUANT TO ARTICLE 2(a)(10), UNIFORM CODE OF MILITARY JUSTICE.

III. WHETHER AN ARTICLE 134 CLAUSE 1 OR 2 SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE EITHER POTENTIAL TERMINAL ELEMENT STATES AN OFFENSE UNDER THE SUPREME COURT’S HOLDINGS IN UNITED STATES v. RESENDIZ-PONCE AND RUSSELL v. UNITED STATES, AND THIS COURT’S OPINION IN UNITED STATES v. FOSLER, 70 M.J. 225 (C.A.A.F. 2011).

Briefs will be filed under Rule 25 on Issues I and II only.

We’ll follow-up with links to briefs and more information when available. ACCA decision available here, prior coverage here and here to name a few.  H/t DHS

Here is a link to the unanimous Army Court of Criminal Appeals opinion finding Art. 2(a) (10), UCMJ constitutional.  United States v. ALAA MOHAMMAD ALI, No. 20080559, Slip op. (A.Ct.Crim.App. Jul 18, 2011).  Here is one relevant exceprt:

As noted in Reid v. Covert, “the extraordinary circumstances present in an area of actual fighting havebeen considered sufficient to permit punishment of some civilians in that area by military courts under military rules.” Covert, 354 U.S. at 33. “In the face of an actively hostile enemy, military commanders necessarily have broad power over persons on the battlefront.” Id. This recognition by the Supreme Court of the historical use of military courts to try civilians in areas of actual fighting, coupled with the recognition of the broad authority of military commanders on the battlefront would seem to authorize, or at least not prohibit, the exercise of military jurisdiction over appellant by the commander of the United States forces in Iraq.

More analysis later.

Here’s a link to an AP article on the Army Times‘ website analyzing yesterday’s oral argument in United States v. Ali, No. ARMY  20080559, on the constitutionality of  Art. 2(a)(10), UCMJ.

So the US v. Ali oral argument addressing the constitutionality of Art. 2(a)(10), UCMJ at the Army Court of Criminal Appeals should be concluded.  Anyone care to share thoughts?

UPDATE: Mark Sherman, one of AP’s SCOTUS reporters, has the first hearing coverage here. One confusing statement in the report. We’ll see if we can help them out.

UPDATE 2:  Here is NIMJ Executive Director Michelle Lindo McCluer’s synopsis of the arguments.

As the No Man noted here, this Tuesday ACCA is scheduled to hear oral argument on the constitutionality of a congressional statute that expanded court-martial jurisdiction to civilians accompanying U.S. forces in contingency operations.  The argument is scheduled for 1000 in front of Judges Tozzi, Sims, and Gallagher in the case of United States v. Ali, No. ARMY 20080559.  But that scheduling presents an interesting conflict for the DAD/GAD leadership, since the Martinez oral argument at CAAF was rescheduled for 1100 on 24 March.  A comment to an earlier post indicates that the Ali argument may be moved.  We’ll posted any new argument time/date that we learn of.

Here is a link to ACCA’s hearing docket listing the issue for review in United States v. Ali, No. 20080559.  The issue for review is:

WHETHER THE MILITARY JUDGE ERRED IN RULING THAT THE COURT HAD JURISDICTION TO TRY APPELLANT AND THEREBY VIOLATED THE DUE PROCESS CLAUSE OF THE FIFTH AND SIXTH AMENDMENTS BY REFUSING TO DISMISS THE CHARGES AND SPECIFICATIONS.

Oral argument is scheduled for 24 May 2011 at 1000.

I believe, if my sources are correct, that this is United States v. Mohammad Allaa Ali, the first and only civilian court-martial under the amended Art. 2(a)(10), UCMJ.  We discussed here the possibility of the Army JAG sending the Art. 69 appeal to ACCA, but thought it was a long shot.  Well I guess I’ll be a monkey’s uncle because it has come to pass.  Anyone with the briefs on hand, we’d appreciate a copy.  Send to noman@caaflog.com.

UPDATE:  And how did I miss this, “On March 31, 2010, Army TJAG certified Ali court-martial to Army Court of Criminal Appeals on whether court-martial had jurisdiction under Article 2(a)(10) and whether court-martial had subject-matter jurisdiction over the offenses.” And the government brief, now here, and defense brief, now here.

H/t MMM

Here is a link to a superb piece on the constitutionality of Art. 2(a)(10), UCMJ, titled Contractors and Courts-Martial, 77 Tenn. L. Rev. 751 (2010).  The author, CAAFlog frequent commenter John O’Connor, opines that there are at least three analytical principles to be divined from the Supreme Court’s civilian courts-martial cases, in particular United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955), to determine if Art. 2(a)(10) passes constitutional muster:

First, . . . that Congress’s constitutional power to regulate the land and naval forces seemingly carried with it a power to court-martial only actual servicemembers.  Second, the constitutional preference for civilian justice over military justice required that any court-martial jurisdiction be confined to “the least possible power adequate to the end proposed.”  Third, in assessing whether a court-martial was the necessary forum, it would not suffice to argue that if a court-martial lacked jurisdiction there would be no recourse· against the accused. If Congress could create federal criminal jurisdiction over an offense, its failure to do so would not strengthen the case for court-martial jurisdiction.

After an extensive review of historical courts-martial practice and SCOTUS precedent, the article finds that Art. 2(a)(10) likely does not pass the mustard, explaining that:

[E]xisting judicial precedent creates a significant, and perhaps insurmountable, obstacle to the enforcement of Article 2(a)(10). Moreover, even if a court were to cast aside existing precedent as dicta, or the Supreme Court repudiated existing case law in this area, there is little in the historical practice or in the historical understanding of Congress’s powers to support the constitutionality of Article 2(a)(10) in the context of modern warfare.

While I agree that as currently drafted Art. 2(a)(10) would face significant constitutional hurdles if the power were exercised today, I don’t agree with JO’C that “the circumstances that historically have been found sufficient to permit the court-martial of civilians largely do not exist today, and might never exist again.” Rather, I think that based on the current state of warfare and those points that the SCOTUS and military law historians agree upon, there is a small set of circumstances where Art. 2(a)(10) would both (a) serve a purpose in maintaining good order and discipline in a military force in the field and (b) satisfy other historic conditions for exercising military jurisdiction over civilians.  Those are . . . let’s see if Army Lawyer is amenable to a rebuttal article.

There have been a number of articles and notes published in civilian law reviews this year about the amendment to Article 2(a)(10) that subjected civilians accompanying U.S. forces in the field during contingency operations to court-martial jurisdiction.  I don’t think we’ve noted all of them, so here’s a bibliography of those I know of:

Laura A. Dickinson, Military Lawyers, Private Contractors, and the Problem of International Law Compliance, 42 N.Y.U. J. Int’l L. & Pol. 355 (2010)

Won Kidane, The Status of Private Military Contractors Under International Humanitarian Law, 38 Denv. J. In’l L. & Pol’y 361 (2010)

Katherin J. Chapman, Note, The Untouchables:  Private Military Contractors’ Criminal Accountability Under the UCMJ, 63 Vand. L. Rev. 1047 (2010)

Matthew Dahl, “Runaway Train”:  Controlling Crimes Committed by Private Contractors Through Appliation of the Uniform Code of Military Justice, 14 Barry L. Rev. 55 (2010)

Adam Ebrahim, Note, Going to War with the Army You Can Afford:  The United States, International Law, and the Private Military Industry, 28 B.U. Int’l L.J. 181 (2010)

Andres Healy, Note, The Constitutionality of Amended 10 U.S.C. § 802(a)(10):  Does the Military Need a Formal Invitation to Reign in “Cowboy” Civilian Contractors?, 62 Fla. L. Rev. 519 (2010)

John S. Kemp, Note, Private Millitary Firms and Responses to Their Accountability Gap, 32 Wash. U. J.L. & Pol’y 489 (2010)

From the NY Times (and AP) regarding armed civilians subject to the UCMJ (and other private security contractors employed by the US) in Afghanistan:

President Hamid Karzai issued a decree on Tuesday ordering the disbanding of private security forces in Afghanistan by the end of the year.

The decree, however, provides an exception for private security firms working inside of compounds used by international groups, embassies, businesses and nongovernmental organizations.  The Associated Press reported. Such guards “will have to stay inside of the organization’s compound and will have to be registered with the Interior Ministry,” the decree says, according to The A.P.

Even so, the ban would appear to constitute a significant change in the security makeup of the country. There are at least 24,000 private armed guards working for 52 security companies registered with the country, some foreign but most Afghan, who escort convoys of supply trucks across dangerous roads to NATO military bases, protect government and military buildings, and provide protection for political leaders and others.

It would seem the trouble with local companies is spilling over to US companies and civilians in Afghanistan

The Code Committee’s 2009 Annual report has some interesting data on civilian cases–I’ll  leave the rest to CAAFlog.  See CAAFlog’s post here and report  here.

First, the Report only mentions one of three cases that DoD defended relating to Art. 2(a)(10) civilian UCMJ matters in the covered period in the section “highlight[ing]” the types of cases the Army handles.  As we reported, the three cases we know about last year were Price v. Gates (see here), Adolph v. Gates (see here and here) and Breda v. Gates (see here). 

As we noted here, the Price v. Gates case ended in the dismissal of the habeas petition as the result of Mr. Price not being charged and being allowed to return home.   (Disclaimer:  I was one of multiple counsel on the case)

The summary of the the one case covered Adolph v. Gates begins, “In Adolph v. United States, the U.S. District Court for the District of Columbia dismissed Mr. Adolph’s habeas petition challenging his pretrial confinement.”  About midway through the paragraph you discover that “[t]he district court did not reach the merits of the issue because Mr. Adolph voluntarily dismissed his petition as moot when the Army transferred him to the custody of the U.S. Marshals.”   The summary of the petition states that Adolph’s petition argued “that the 2006 amendment to Article 2(a)(10) extending UCMJ jurisdiction over civilians accompanying the force during a contingency operation was unconstitutional because Congress can only extend UCMJ jurisdiction over civilians in a time of declared war.”  Mr. Adolph (Disclaimer:  I was one of multiple counsel on the case) also mentioned something about the constitutionality of exerting Art. 2(a)(10) authority over him when he was in Kuwait.  But, I can see how space limitations may have led that summary to be shorter.  The result of the case was a MEJA conviction and a sentence of “two years probation and 104 hours of community service.”  I’ll let you judge whether his choice to contest UCMJ jurisdiction was a good one, but me thinks a court-martial would not have given him probation.

In the third case, Mr. Breda was ultimately charged under MEJA and received two years confinement for abusive sexual contact.  See USAO press release here.

The Foreign Criminal Jurisdiction cases report was also interesting.  First, the report stated, “During this reporting period, foreign authorities tried a total of 451 cases involving U.S. personnel. Seven trials, or 1.6%, resulted in acquittals.”  When you look at the sentences for those cases, I doubt these were more than mainly bar fights and traffic offenses. So that could be a dubious statistic, but interesting compared to CAAFlog’s number on court-martial acquittal rates below

Second, the jurisdictional waiver statistics are also interesting:

[F]oreign authorities released to U.S. authorities four of the 72 exclusive foreign jurisdiction cases involving military personnel. In concurrent jurisdiction cases in which the foreign countries had the authority to assert primary jurisdiction, U.S. military authorities were able to obtain waivers of the exercise of this jurisdiction in 1906 of the 2046 cases. Overall, the U.S. obtained waivers in 93.2% of all exclusive and concurrent jurisdiction cases. This figure reflects an increase of 5.5% in obtaining waivers compared to the previous reporting period. . . .

[In roughly FY07] Foreign authorities released 50 of [880 civilian] cases (5.7% of the total of that reporting period) to U.S. military authorities for administrative actions or some other form of disposition. In this reporting period [roughly FY08], civilian employees and dependents were involved in 864 offenses. The foreign authorities released 26 of these cases (3.0% of the current total of this reporting period). This figure represents a decrease of 2.7% in obtaining releases of foreign criminal jurisdiction over civilian employees and dependents. [No Man  Note:  That’s actually a 47.37% change, but 2.7% difference]

Interesting that the waiver stats for military and civilians are going in opposite directions.  I wonder if any perception about US justice for these civilians influenced the willingness of countries to release civilians to the US pursuant to SOFAs or other agreements?  And it doesn’t appear that our partner nations have all that dim a view of MilJus as the waiver rate for uniformed personnel went up.

I became a judge advocate 22 years ago.  In that time, I don’t think any court-martial issue has sparked as much commentary in civilian law reviews as the expansion of court-martial jurisdiction to cover civilians accompanying the military in the field in contingency areas.  Here are two more articles on the subject:

Major Christopher S. Morgan & Major Shawn D. McKelvy, Essay: The “Ethical” Case for Trying Civilian Contractors Under the Uniform Code of Military Justice, 50 So. Tex. L. Rev. 859 (2009).

Steven P. Cullen, Out of Reach:  Improving the System to Deter and Address Criminal Acts Committed by Contractor Employees Accompanying Armed Forces Overseas, 38 Pub. Cont. L.J. 509 (2009).